Mr Tahir Ozturk v Gold Coast Hospitality Services Pty Ltd

[2018] FWC 2129

[2018] FWC 2129

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Tahir Ozturk
v
Gold Coast Hospitality Services Pty Ltd
(U2017/12246)

COMMISSIONER BOOTH BRISBANE, 4 MAY 2018

Application for an unfair dismissal remedy – extension of time – extension of time granted.

[1] An application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) was lodged at Brisbane on 16 November 2017. The applicant is Mr Tahir Ozturk (the Applicant) and the respondent employer is Gold Coast Hospitality Services Pty Ltd (the Employer).

[2] The Employer objects to the application on various grounds 1 including that the application was filed outside the 21-day time limit prescribed by s.394(2)(a) of the Act.

[3] This decision determines the following:

1) on what date was the Applicant actually terminated or resigned; and

2) if the application was found to be filed out of time, whether there are exceptional circumstances allowing an extension of time to be granted?

[4] On 19 December 2017, following an unsuccessful conciliation of 5 December 2017, correspondence was sent to the Applicant advising that the application appeared to have been made one day after the legislated time frame and therefore the Applicant would need to seek an extension of time from the Commission.

[5] This is because the application states the date of the Applicant’s dismissal as 25 October 2017. Therefore if the 25 October was the date of dismissal then the application would be made one day outside the 21-day time limit prescribed by s.394(2)(a) of the Act.

[6] The Applicant’s representative submitted by way of email that the date Mr Ozturk was dismissed was 27 October 2017, that is, within the statutory time frame. Correspondence from the Employer maintained that the Applicant resigned but if he did not then the date of termination was 25 October 2017.

Relevant Provisions of the Legislation

[7] The substantive application has been made under s.394 of the Act. Sections 394 provides as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[8] As the Employer has objected to the application, submitting it was filed outside the 21-day time limit prescribed by s.394(2)(a), the Applicant’s unfair dismissal application can only be pursued if this time limit is extended in accordance with s.394(3). 2

[9] The matter was allocated to me to decide whether the application was filed within the statutory time frame or whether an extension of time to file the application should be granted.

[10] I held a Directions Conference by telephone on 14 February 2018, following which Directions were issued for the filing of material relating to the extension of time issue.

[11] On 17 April 2018, the Fair Work Commission conducted a hearing to deal with the question of extension of time. At the hearing the Applicant was represented by Mr Jason Murakami of Broadbeach Law Group.

[12] The Employer did not attend the hearing.

Background

[13] No F3 Employer Response was filed. This background reflects the Applicant’s submissions.

[14] Between 2006 and 10 October 2017, the Applicant was employed by Gold Coast Hospitality Pty Ltd as a promotions manager. 3

[15] In or around September 2017, Mr Hayden, a patron attending the Employer’s place of business, allegedly paid the Applicant a $500 tip.

[16] On 10 October 2017, the Employer’s Director, Mr Craig Duffy, advised the Applicant that he was suspended for stealing $500 from Mr Hayden.

[17] The Applicant was suspended from 10 October 2017 to 25 October 2017. The Applicant submitted that he met with the Employer on 25 October 2017 for approximately 15 minutes and during this meeting the Employer confirmed the Applicant was still suspended.

[18] The Applicant submitted that on 29 October 2017, Mr Duffy organised for a journalist to write a story about the Applicant “retiring”. 4

[19] On 30 October 2017, an article appeared in the Gold Coast Bulletin regarding the Applicant’s retirement. Also on 30 October 2017, Mr Duffy sent a text to the Applicant stating “Not txting again … I’ll issue instructions to lawyers today. Pic in wall of shame. Contact Bulletin to tell them real story. Release CCTV footage on line. Take out full page ad in paper. You really want to try stealing from me. You won’t hear from me ever again”. 5

[20] On 15 November 2017 the Applicant received payment of his final employment entitlements of $4,858.20.

[21] On 16 November 2017 the Applicant filed his Unfair Dismissal application at the Brisbane Registry of the Fair Work Commission.

Applicant’s Submissions

[22] Contrary to the application filed on 16 November 2017, the Applicant submitted that his termination took effect after 25 October 2017 and that his application was not in fact lodged outside the 21-day period.

[23] On 19 December 2017, correspondence was received to the Commission advising that the Applicant’s termination date provided in the F2 application was an approximation as the Applicant was never formally terminated. Mr Murakami, the Applicant’s representative, submitted that the Applicant was terminated either on 25 October 2017 or seven days after, and that the application should be taken as filed within time. 6

[24] In correspondence of 20 December 2017, the Applicant submitted that he was terminated on 27 October 2017, and therefore the application was filed within time.

[25] On 11 January 2018, the Applicant’s representative submitted a copy of the Applicant’s final termination payment made on 15 November 2017. The Applicant’s representative then submitted that this final payment demonstrates termination took effect on 15 November 2017, and the Applicant therefore had until 6 December 2017 to file the F2 Unfair Dismissal application. 7

[26] In formal submissions received to my Chambers on 7 March 2018, the Applicant reiterated that he was never formally advised of his dismissal, adding that he was threatened that if he did not retire adverse actions would be taken against him and that he felt he was being told to “resign or else”. 8

[27] At the hearing of this matter, the Applicant’s representative submitted that in determining what date the Applicant actually resigned or was terminated, given the facts before the Commission the relevant date should be considered 15 November 2017. 9 The Applicant’s representative submitted that if the Commission did not agree with 15 November 2017 as the relevant date for termination, the date should be considered to be 30 October 2017 when the Applicant’s “retirement” article appeared in the Bulletin.10 The Applicant’s representative submitted that regardless which of the two dates the Commission agrees to be the relevant date of termination or resignation, the application should be taken as filed within time.11

[28] At the hearing the Applicant submitted under oath that there was no date where he could say he was informed of any termination. 12

[29] As he was never formally advised of his termination date, the Applicant submitted that the dismissal date has to be inferred. The Applicant was paid his employment entitlements on 15 November 2017, and the Applicant submitted that he had no other inference to draw from this event other than he had been dismissed. The Applicant submitted that he had 21 days from 15 November 2017 to file his application, and that having filed his Unfair Dismissal application on 16 November 2017 he had filed within the standard time limit.

Employer’s Submissions

[30] The Employer did not attend the hearing. The Employer’s material is extracted following enquiries made by the Commission.

[31] In email correspondence to the Commission on 20 December 2017, the Employer submitted that the Applicant “retired”, all matters in “2.1” had been resolved in the Employer’s favour, and the file should be closed. 13 In further correspondence of 21 December 2017, the Employer submitted a screen capture of Google search results suggesting that the Applicant retired.14 The Employer submitted that the Applicant had effected a voluntary retirement and was not dismissed.15

[32] The Commission sent correspondence to the Employer on 11 January 2018 asking for confirmation of the date on which the Applicant’s employment ended, whether by dismissal or resignation.

[33] In correspondence dated 16 January 2018, the Employer wrote to the Commission advising that the Applicant filed their application “3 days late and their application is void” and that the “matter is closed in my views”. 16 In further correspondence, the Employer submitted that on 25 October 2017, it advised the Applicant “of the situation, he chose [sic] to quite [sic] after this”.17

[34] The Employer submitted that if the Applicant was found not to have quit, the relevant termination date was 25 October, which the Employer submitted he could corroborate with internal emails around the Applicant’s pay adjustments.

[35] In correspondence of 17 January 2018, the Employer submitted that on 11 October 2017 payroll was advised to stop the Applicant’s pay. In support of this submission, the Employer submitted an email of 25 October 2017 which was sent to [email protected] and provided the following:

“As per our discussion to stop paying jimmy due to this $500 incident on 11/10, you can now Payout his wage and holidays for the week we withheld.

No bonuses”. 18

[36] The Employer further submitted a Payroll Summary of 9 October 2017 showing the Applicant as a Payroll recipient, and a subsequent Payroll Summary of 16 October 2017 without the Applicant’s name appearing as a Payroll recipient.

[37] The Employer submitted that it met with the Applicant on 25 October 2017, and that following this meeting the Employer advised the Applicant by text on 11 October 2017 “that he should consider retiring gracefully”. 19

[38] In correspondence to my Chambers on 13 February 2018, the Employer again submitted that the application was made outside the statutory time limit, the Applicant had retired and not been terminated, and the “matter is closed”. 20 In correspondence of 26 February 2018, the Employer reiterated that if the Applicant was found not to have voluntarily retired, then the relevant termination date is 11 October 2017 as per the Payroll supporting evidence.

Consideration

Whether the application was filed within time

[39] The date on which a dismissal should be considered to take effect is the date that the employee becomes aware that the dismissal has occurred. In the decision Mohammed Ayub v NSW Trains 21 the Full Bench explains as follows:

“[36] Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this. The combination of the very restricted time period to lodge an application under s.394(2)(a), together with the very high bar of “exceptional circumstances” required to be surmounted in order to obtain an extension of time to lodge an application, clearly demonstrates that it was intended that the timeframe to agitate such an application was to be strictly limited. Indeed s.394(2)(a) of the FW Act as originally enacted provided for a 14-day period only; this was extended to 21 days by the Fair Work Amendment Act 2012. On any view, the period allowed by s.394(2)(a) is extremely short having regard for the need for a dismissed person to take stock of his or her situation, seek advice or information about his or her rights, make a decision to seek a remedy, and complete and lodge an application. In that context it would require express language to justify an interpretation of the provision under which the 21-day time period allowed is further shortened because a dismissal is taken to have had effect before the employee has become aware that it has occurred. Were it otherwise, it would be possible for a dismissal with retrospective effect to be constructed which significantly diminished or even entirely eliminated the time allowed for an employee to lodge an unfair dismissal remedy application.” 22 (Emphasis added)

When did the Applicant become aware that the dismissal had occurred?

[40] The Applicant submitted under oath that he was never informed of his termination.

[41] What date then could be inferred as the relevant date on which Mr Ozturk could have become aware of his termination? A number of dates are possible:

•  15 November 2017 when his final pay was received to his bank account; or

•  The date the Applicant was interviewed regarding his “retirement” from the Employer’s business. This is submitted to have occurred on 29 October 2017; or

•  26 October 2017. This date relies on a text message that “you are suspended still”, which the Applicant received from the Employer on 25 October 2017.
The Applicant was “suspended still” on the 25 October 2017, therefore the possible date is 26 October; or

•  25 October when the Employer asserts he advised his accounts section to stop paying the Applicant; or

•  11 October as per the Payroll advice slip provided by the Employer.

[42] I accept the evidence of the Applicant that he was not aware of his termination and that it had to be inferred. While the Employer may have taken certain steps to bring the employment relationship to an end including dealing with final pays, I accept the Applicant’s uncontested evidence that he was not aware of the Employer’s actions.

[43] Further, I accept the evidence of the Applicant that he received a text that stated “still suspended” on 25 October 2017. A reasonable conclusion from such a text is that, at least until 25 October 2017, the Applicant was employed but suspended.

[44] Therefore the date of dismissal or resignation is after that date which is 26 October or later.

[45] The date of 26 October 2017 or later is within the 21-day time limit prescribed under the Act.

[46] If, however, the conclusion is wrong that the application is filed within the statutory time limit, then the discretion should be exercised to extend the time for filing the application.

Whether there are exceptional circumstances to allow an extension of time

[47] Unless the Commission finds there are exceptional circumstances, and in its discretion allows a further period, there is no valid application to be considered. The six factors listed in s.394(3) are highly prescriptive and are the only power the Commission has to extend time. 23

[48] Nulty v Blue Star Group Pty Ltd 24 extensively canvassed the meaning of “exceptional circumstances” for s.394(3), concluding:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 25

[49] As outlined above, subsection 394(3) of the Act provides the Commission with discretion to extend the time limit of 21 days as fixed by subsection 394(2). Under s.394(3), there are six factors that must be considered:

“ (a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

(a) the reason for the delay

[50] The Employer submitted two possible dates for the Applicant’s termination or resignation, those being 11 October 2017 or 25 October 2017, and submitted that in either case the application was made out of time.

[51] The Applicant’s evidence is he did not know that he was terminated and had to infer the same. This evidence was not challenged and provides an explanation and reason for any delay. That is, even if the Employer’s submissions as to date of termination/resignation of 11 or 25 October are accepted, they were not known to the Applicant. I accept that the Applicant did not know he was dismissed on those dates and this explains any delay in filing the application.

(b) whether the Applicant first became aware of the dismissal after it had taken effect

[52] The Applicant submitted that he was never informed of his dismissal taking effect, and he had to infer this fact from his final pay received on 15 November 2017.

(c) any action taken by the Applicant to dispute the dismissal

[53] The Applicant submitted that on 10 November 2017, he instructed his representative to issue an open letter to the Employer in an attempt to settle this matter. The Applicant submitted no reply was provided from the Employer. 26

(d) prejudice to the Employer (including prejudice caused by the delay)

[54] No submissions were made about possible prejudice. Given that any delay was relatively short, I consider this to be a neutral factor.

(e) the merits of the application

[55] The Applicant’s representative made submissions at the hearing noting that the case of O’Meara v Stanley Works Pty Ltd 27is on point, and that the Commission ought to be concerned about the behaviour of the Employer.

[56] The Applicant’s representative submitted that as in O’Meara, the Applicant in this matter was subject to a forced resignation. This is clearly contested and the matter should be properly considered at hearing of the unfair dismissal application.

(f) fairness as between the person and other persons in a similar position

[57] No significant submissions were made on this criterion and I consider it to be a neutral consideration.

Conclusion

[58] I accept that the termination or resignation took place either on 26 October 2017 or later, and that in either instance the application should be taken to have been filed within time.

[59] If in the alternative the application was filed outside the 21-day time limit, I conclude that I should exercise my discretion to extend time to file the application. In my view the Applicant can establish exceptional circumstances based on his uncontested evidence that he did not know his employment had ended.

[60] The extension of time is granted.

[61] The matter will now proceed for programming of the substantive application.

COMMISSIONER

Appearances:

Mr J. Murakami of Broadbeach Law Group for the Applicant.

No appearance from the Respondent.

Hearing details:

Brisbane.

17 April.

2018.

Printed by authority of the Commonwealth Government Printer

<PR601978>

 1   The Employer submitted in email correspondence to the Commission that: the Applicant quit/voluntarily resigned; the application was filed three days late and is hence “void”; and all entitlements had been paid to the Applicant following his voluntary resignation.

 2   Fair Work Act 2009 (Cth) s.394(2); see for example Grant Reeve v Monadelphous Engineering Associates Pty Ltd [2018] FWC 2219 at [17]; Brian Shipp v Svitzer Australia Pty Ltd T/A Svitzer Australasia [2014] FWC 7862 at [16]; Robert Gordon v Uniting Communities [2014] FWC 6220 at [17].

 3   Applicant’s submissions dated 7 March 2018.

 4   Ibid.

 5   Ibid.

 6   Letter from Broadbeach Law Group to the Fair Work Commission dated 19 December 2017.

 7   Letter from Broadbeach Law Group to the Fair Work Commission dated 11 January 2018.

 8   Applicant’s submissions dated 7 March 2018.

 9   Transcript PN50.

 10   Transcript PN51.

 11   Transcript PN52.

 12   Transcript PN84.

 13   Email correspondence from the Employer dated 20 December 2017.

 14   Email correspondence from the Employer dated 21 December 2017.

 15   Ibid.

 16   Email correspondence from the Employer dated 16 January 2018.

 17   Email correspondence from the Employer dated 16 January 2018.

 18   Email correspondence from the Employer to accounts dated 25 October 2017.

 19   Email correspondence from the Employer dated 17 January 2018.

 20   Email correspondence from the Employer dated 13 February 2018.

 21   [2016] FWCFB 5500.

 22 Ibid at [36].

 23   See Mihajlovic v Lifeline Macarthur[2014] FWCFB 1070 at [16].

 24   [2011] FWAFB 975.

 25 Ibid at [13].

 26   Transcript PN99-PN100.

 27   [2006] AIRC 496.